Tag Archives: impeachment

[Editor’s note: Today’s post was written by Alyson Grine and Emily Coward. Until last year, Alyson was the Defender Educator at the School of Government. She is now an Assistant Professor of Law at NCCU, but she continues to work with the School of Government’s Indigent Defense Education team on the NC Racial Equity Network. Emily is a Research Attorney with the Indigent Defense Education team at the School of Government.]

Summary: In its March 6 opinion in Pena-Rodriguez v. Colorado, the U.S. Supreme Court carved out an exception to the “no impeachment” rule for cases in which a juror makes a clear statement that he or she relied on racial bias in voting to convict a criminal defendant. In such cases, the evidentiary rule preventing the court from hearing juror testimony about statements made during deliberations must give way so that the court may consider whether the alleged racial bias violated the defendant’s Sixth Amendment right to a fair trial. We may be opening ourselves up to accusations that we are seeking to extend our moment in the spotlight by blogging about this case: as mentioned in last week’s News Roundup, the manual we co-authored, Raising Issues of Race in North Carolina Criminal Cases, was cited by Justice Alito in his dissenting opinion. However, as this opinion marks the beginning of a new chapter in the centuries old “no impeachment” rule, it’s important for North Carolina practitioners to understand its implications. Continue reading →

I previously posted (here) about impeaching a witness with a prior inconsistent statement. In this blog post I’ll address impeaching with evidence of bias. As our blog readers know, a witness may be impeached with evidence that he or she is biased because of, for example, affection for or dislike of a party or self-interest in the case. The case law is filled with examples. See, e.g., State v. Perkins, 345 N.C. 254, 280-82 (1997) (proper to cross-examine a defense forensic psychologist about whether he was biased against the State); State v. Wilson, 335 N.C. 220, 226 (1993) (proper for the prosecutor to ask whether the defendant had paid the witness to testify); State v. Bullock, 154 N.C. App. 234, 240-41 (2002) (proper to cross-examine a defense witness about whether she previously had an altercation with the victim); State v. Clark, 128 N.C. App. 722, 725-26 (1998) (new trial; the trial court excluded testimony of a defense witness, Mary, who would have testified in part that a State’s witness, Leowana, told her that Leowana’s family was attempting to frame the defendant); State v. Frazier, 121 N.C. App. 1, 14 (1995) (prosecutor properly asked a defense witness if she would “do anything” to get a not guilty verdict).

With other impeachment methods, figuring out whether extrinsic evidence may be used can be tricky. Not so with bias. The rule is simple: Extrinsic evidence may be used to impeach regarding bias. Robert P. Mosteller et al., North Carolina Evidentiary Foundations 6-35 (2nd ed. 2006); see, e.g., State v. Whitley, 311 N.C. 656, 663 (1984) (dicta);State v. Lytch, 142 N.C. App. 576, 586 (2001) (proper to use extrinsic evidence to show defense witness’s bias), aff’d, 355 N.C. 270 (2002) (per curiam); State v. Rankins, 133 N.C. App. 607, 610 (1999) (reversible error to preclude the defendant’s witness who would testify that the defendant’s accomplice, a prosecution witness, said he had made a deal with the State). However, before offering extrinsic evidence of bias, a party must, on cross-examination, bring the impeaching evidence to the attention of the witness. Evidentiary Foundations at 6-35; Whitley, 311 N.C. at 663. If the witness admits the relevant facts, the judge may exercise his or her discretion under Rule 403 to exclude or limit the use of extrinsic evidence. Evidentiary Foundations at 6-35. However, if the witness denies the impeaching facts, the opponent may impeach with extrinsic evidence. Id.

When a State’s witness has pending charges this line of impeachment can be a goldmine. The defendant may be able to impeach with evidence that the witness has discussed, has been offered, or has accepted a deal with the State for a reduction of charges, reduced punishment, etc. in exchange for his or her testimony. This is a proper basis for impeachment and the defendant should not be limited in exploring it. State v. Rankins, 133 N.C. App. 607, 610-11 (1999) (reversible error to so limit the defendant). This rule applies to any State’s witness, and denial of the right to impeach on these grounds implicates constitutional confrontation rights. State v. Prevatte, 346 N.C. 162, 163 (1997) (following Davis v. Alaska, 415 U.S. 308 (1974), and ordering a new trial where the State’s principal witness was under indictment and the court refused to allow the defense to cross-examine the witness about the charges and whether he had been promised or expected anything in exchange for his testimony); State v. Hoffman, 349 N.C. 167, 179-81 (1998) (following Davis and holding that the defendant should have been allowed to cross-examine the State’s witness about his pending criminal charges; noting the constitutional dimension of this error but concluding that it was harmless beyond a reasonable doubt).

Lawyers often try to impeach the other side’s experts with evidence of bias. One common tactic is to ask the expert about compensation for his or her testimony. This is permissible, State v. Lawrence, 352 N.C. 1, 22 (2000); State v. Atkins, 349 N.C. 62, 83 (1998), even if the expert is court appointed and paid with state funds. Lawrence, 352 N.C. at 22-23. However, a party may not abuse, insult, or degrade an expert or attempt to distort the expert’s testimony under the guise of impeachment. State v. Sanderson, 336 N.C. 1, 11-15 (1994) (such conduct constituted prejudicial error). It is proper to impeach an expert with the fact that his or her license has been revoked, State v. Page, 346 N.C. 689, 697-98 (1997), and by probing the basis of the expert’s opinion. State v. Morganherring, 350 N.C. 701, 729 (1999) (prosecutor properly cross-examined the defendant’s expert about his familiarity with the sources upon which he based his opinion); State v. Gregory, 340 N.C. 365, 409-10 (1995) (prosecutor properly questioned a defense expert about his reasons discounting accomplices’ statements that were inconsistent with the defendant’s statement where expert had previously stated that when performing a psychiatric evaluation “you rely on as many records as you can get”). Such impeachment however is not without limitation. See, e.g., State v. Lovin, 339 N.C. 695, 713-714 (1995) (error to allow the State to cross-examine defendant’s mental health expert by reading portions of an article that denigrated clinical psychologists; the witness had not read the article and there was no showing of its validity).

In terms of trial practice, there are several criminal pattern jury instructions on point including:

N.C.P.I. Crim—104.20 (testimony of interested witness);

N.C.P.I Crim—104.21 (testimony of witness with immunity or quasi-immunity); and

N.C.P.I Crim—104.30 (informer or undercover agent).

Upon request and in appropriate circumstances the trial judge should give these instructions.

For other impeachment techniques, such as evidence of a prior conviction and character for untruthfulness, see my judges’ bench book chapters here and here.

Trial lawyers love a good gotcha moment and this method of impeachment–by prior inconsistent statement–presents lots of opportunities for that. Proving that a witness previously made statements inconsistent with his or her trial testimony impeaches the witness by casting doubt on the witness’s credibility. Note that use of a prior inconsistent statement for impeachment purposes is different from use of the statement for substantive purposes; the latter invariably involves application of the hearsay rules, whereas the former doesn’t. State v. Roper, 328 N.C. 337, 366 (1991). Even though this is one of the most common techniques for impeaching a witness, not everyone is fluent in the basic rules. With this post I hope to change that. Here’s what you need to know:

Form of the Prior Statement. No particular formality is required for the prior statement. State v. Ward, 338 N.C. 64, 97 (1994) (may be made in or out of court; may be oral or in writing); In re K.W., 192 N.C. App. 646, 650-51 (2008) (statement on MySpace page).

Must Be the Witness’s Statement. The prior inconsistent statement must have been made by the witness; a witness may not be impeached with a prior inconsistent statement made by someone else. Ward, 338 N.C. at 97-98 (fact that the witness made the statement must be proved by direct evidence; proper to exclude testimony from a defense witness who heard of the statement second hand); State v. Lynn, 157 N.C. App. 217, 226-27 (2003) (following Ward). Note, however, that when the witness testifies that material fact A occurred, a party may introduce testimony from another witness that material fact A did not occur; this is called impeachment by specific contradiction, a separate technique.

Statement Must Be Inconsistent. In order for a prior statement to be used for impeachment, it must in fact be inconsistent with the witness’s present testimony. McCormick at 210. As a general rule, a prior statement is inconsistent if there is any “material variance” between the trial testimony and the content of the statement. 1 Kenneth S. Broun et al., McCormick on Evidence 210 (7th ed. 2013). This issue may present a preliminary question of admissibility to be resolved by the trial judge under N.C. R. Evid. 104.

Cross-Examination. A party may cross-examine a witness about a prior inconsistent statement, even if it pertains to a collateral matter. The rationale for this rule is that by testifying the witness has put his or her credibility at issue. When examining a witness about his or her prior statement, the statement need not be shown to the witness, nor must its contents be disclosed to the witness. N.C. R. Evid. 613. However, on request the statement must be shown or disclosed to opposing counsel. Id.

Extrinsic Evidence. Extrinsic evidence of a prior inconsistent statement may be used to impeach when the issue is material; however, extrinsic evidence may not be used to impeach concerning collateral matters. State v. Hunt, 324 N.C. 343, 348 (1989); McCormick at 216. Here’s a simple rule of thumb for distinguishing collateral from material matters: A matter is material if it is independently relevant to the case, apart from its impeachment value. Consider this example. In a larceny case, a victim testifies that she is 32 years old. The defendant proffers the victim’s older sister who will say that the victim is 33. Since the victim’s age is irrelevant to any issue in the case, the defendant may not use extrinsic evidence to impeach the victim about her age. Suppose now that the charge is statutory rape and the victim testifies that she is 12 years old. The defendant proffers the victim’s older sister who will say that the victim is 15 years old. Now the defendant’s impeachment with extrinsic evidence is proper because the victim’s age is an element of the offense; the sister’s testimony is independently relevant as it is substantive evidence that the victim is not a person under 13 years of age.

Bias. Evidence that the witness is biased always is relevant to assessing a witness’s credibility. 98 C.J.S. Witnesses § 707. Thus, when the prior inconsistent statement reveals bias, extrinsic evidence may be used. Roger Park & Tom Lininger, The New Wigmore: A Treatise on Evidence: Impeachment and Rehabilitation § 5.9 (2012); State v. Whitley, 311 N.C. 656, 663 (1984). However, the prior statement first must be called to the attention of the witness. Whitley, 311 N.C. at 663.

Witness’s Denial of Making the Statement. When a witness denies making a prior statement, a party may not impeach that denial with extrinsic evidence of the substance of the prior inconsistent statement. State v. Hunt, 324 N.C. 343, 348-49 (1989)(error to allow witness to testify to the substance of first witness’s statement which she had denied making); State v. Williams, 322 N.C. 452, 455-56 (1988) (reversible error; after defense witness denied making prior inconsistent statement, the State presented two witnesses who testified to the substance of the statement). Note that when the witness denies having made the statement but goes on to testify inconsistently with it, extrinsic evidence of the substance of the statement may be used to impeach if the matter is material, as discussed above. State v. Gabriel, 207 N.C. App. 440, 447 (2010).

No Need to Bring Statement to the Attention of the Witness. As a general rule, when a witness’s prior statement relates to material matters and may be proved with extrinsic evidence, there is no requirement that the impeaching party call inconsistencies to the attention of the witness before introducing extrinsic evidence. State v. Whitley, 311 N.C. 656, 663 (1984); Brandis & Broun § 161. An exception however exists with regard to prior inconsistent statements showing bias, as noted above.

I’ve had a whole bunch of phone calls lately raising the same basic issue: suppose that a prosecutor is aware that an officer has been dishonest or has engaged in other misconduct in the past. Must the prosecutor disclose the officer’s dishonesty or misconduct to the defendant in a pending case in which the officer participated?

The answer to the question is, sometimes. The officer’s prior dishonesty or misconduct is potential impeachment material in the pending case. If it reaches the level of material impeachment information, it must be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Whether the officer’s prior dishonesty or misconduct is material depends on a number of factors, including:

How long ago the dishonesty or misconduct was. The more recent it was, the more likely that it is material.

How serious the officer’s dishonesty or misconduct was. The more serious it was, the more likely that it is material.

How conclusively the officer’s misconduct was established. The more certain it is that the officer engaged in misconduct, the more likely that the information is material. For example, a “substantiated” complaint that an officer planted evidence is more likely to be material than a complaint that could not be confirmed.

Whether the officer’s dishonesty or misconduct arose in a fact pattern that is also present in the instant case. For example, if the officer falsified a search warrant application in a prior case, and also obtained a search warrant in the instant case, the information is more likely to be material.

Whether the defendant in the current case plans to present a defense based on the officer’s misconduct or dishonesty. The more likely that the officer’s credibility will be a focus of the defense, the more likely the officer’s prior misconduct is to be material.

Whether the officer’s role in the current case is central or peripheral. The more critical his or her role, the more likely that impeachment evidence concerning his or her prior misconduct is material.

Perhaps, whether evidence of the misconduct is contained in personnel records vs. in less-private sources. Personnel records are subject to privacy protections that other sources of information are not.

In some instances, balancing the officer’s privacy interests against the defendant’s due process rights may require a judge to conduct an in camera examination of records regarding an officer’s prior misconduct.

Some relevant authorities from several jurisdictions are summarized below. Most of the cases concern the discovery issue, but some address the admissibility of evidence of an officer’s prior misconduct because that may bear on the discovery question. If there are useful cases on point in North Carolina, I’m not aware of them. (Readers, let me know if you think I’m missing important authorities.) Generally, I would advise a prosecutor to err on the side of caution in this area.

Blumberg v. Garcia, 687 F.Supp.2d 1074 (C.D. Cal. 2010)

A gang member was convicted of attempted murder in connection with the shooting of a rival gang member. One of the state’s rebuttal witnesses was an officer who testified about the defendant’s involvement in a similar prior incident. At the time of the defendant’s trial, the officer had a sustained internal affairs complaint for lying, and was under investigation for planting evidence and falsifying reports. (The officer was subsequently fired by his agency as a result of the investigation.) None of the foregoing information was disclosed to the defendant prior to trial. Although the state courts found that the withheld information was not material, a federal court ruled in habeas proceedings that the evidence was “impeachment and/or exculpatory evidence which the prosecution had a duty to disclose.”

The trial judge properly excluded evidence about an officer’s prior misconduct – misrepresentations about the extent of the consent he received during a search – under Rule 403. The incident was four years old, the instant case did not involve a similar fact pattern, and a mini-trial about the officer’s prior conduct would have been confusing. [Note: this case address the admissibility, rather than the discoverability, of misconduct evidence.]

In a dispute over the firing of an officer for filing a false arrest report, the city argued that “retaining the grievant would be problematic because, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) . . . the prosecution would have to disclose the grievant’s false report and dishonesty in all future cases in which he was involved.” [Note: The court did not expressly agree or disagree with the city’s interpretation of Brady.]

An officer had “a sustained complaint . . . for submitting an arrest report that he knew contained inaccurate information,” apparently in a previous case. In the course of discussing the government’s errors in handling the report, the court described it as “crucial impeachment information.”

United States v. Hayes, 376 F.Supp.2d 736 (E.D. Mich. 2005)

Federal felon-in-possession case. Officer who claimed that he saw the defendant throw down a gun during foot chase was the “centerpiece of the prosecution, and a fair determination of his credibility is of paramount importance to the question of guilt or innocence.” Thus, information regarding a previous federal prosecution of the officer for, inter alia, “falsify[ing] police reports” and covering up other officers’ misconduct, must be disclosed to the defendant, even though the prior prosecution of the officer was dismissed.

United States v. Bravo, 808 F. Supp. 311 (S.D.N.Y. 1992)

New trial because of government’s failure to disclose any impeachment material about officers in a DEA unit that was under investigation “for allegedly beating up suspects, snorting cocaine, gambling, having sex with an informant and lying in court.” At the time of the defendant’s trial on drug charges, the unit either had been disbanded or was about to be so; the unit’s leader was either assigned to a desk job or was about to be so; and a judge in another case had expressed severe doubt about the veracity of certain officers’ testimony. Under those circumstances, a duty to disclose arose notwithstanding the lack of a formal finding of misconduct.

Cal. Evid. Code § 1045

When a defendant seeks “records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which [a] peace officer . . . participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties,” and makes a sufficient threshold showing, the court should conduct an in camera review of the records, and should withhold, inter alia, complaints that are more than five years old and records the disclosure of which offers “little or no practical benefit.” (However, older records may be available if they are material under Brady, according to City of Los Angeles v. Superior Court, 52 P.3d 129 (Cal. 2002).)

The N.C. Court of Appeals’ recent decision in State v. Harrison raises an issue that arises with some frequency in N.C. criminal trials: When can the State use evidence of a defendant’s pre- and post-arrest silence at trial? In this post I’ll address that issue.

In Harrison, the defendant was convicted of larceny of a dog. He appealed arguing, in part, that the trial court erred by allowing the State to use his pre- and post-arrest silence as substantive evidence of guilt, violating his constitutional right to remain silent. The defendant pointed to two instances that occurred at trial. First, he noted, when talking about his initial interview of the defendant, a law enforcement officer stated: “So, I continued to interview with him. He provided me – he denied any involvement, wished to give me no statement, written or verbal.” Second, the defendant pointed to the officer’s testimony about the defendant’s arrest. In response to the prosecutor’s question about whether the defendant made any statements after the warrant was served, the officer responded: “After he was mirandized [sic], he waived his rights and provided no further verbal or written statements.”

The court began its analysis by setting out the rules governing the use of a defendant’s pre- and post-arrest silence at trial. It noted that a defendant’s pre-arrest silence and post-arrest, pre-Miranda warnings silence may not be used as substantive evidence of guilt, but may be used to impeach the defendant by suggesting that the defendant’s prior silence is inconsistent with his or her present statements at trial. However, a defendant’s post-arrest, post-Miranda warnings silence may not be used for any purpose.

Applying these rules, the court noted that the defendant testified after the officer so the State could not use the officer’s statement for impeachment. Also, the court noted, the officer’s testimony was admitted as substantive evidence during the State’s case in chief. Thus, it concluded it was error for the trial court to admit both statements.

As noted above, the issue arises with some frequency at trial. See, e.g., State v. Jackson, __ N.C. App. __, 691 S.E.2d 133 (2010) (although the State may use a defendant’s pre-arrest silence for impeachment purposes, once the defendant has been arrested and advised of his or her Miranda rights, use of the defendant’s silence violates the right against self-incrimination); State v. Mendoza, __ N.C. App. __, 698 S.E.2d 170 (2010) (the trial court erred by allowing the State to introduce evidence, during its case in chief, of the defendant’s pre-arrest and post-arrest, pre-Miranda warnings silence). If the issue comes up in one of your cases, here’s a handy chart to keep the rules straight:

The Supreme Court’s latest criminal law decision is Kansas v. Ventris, available here. The basic holding is that a statement obtained in violation of a defendant’s Sixth Amendment right to counsel may be admitted for impeachment purposes, so long as the statement was voluntary.

In brief, the defendant in Ventris was charged with murder and other offenses, and the police had a jailhouse informant ask him about the crimes. The defendant confessed, but because the informant deliberately elicited information, rather than serving as a mere listening post, the defendant’s statements were obtained in violation of the Sixth Amendment, and the state did not introduce them in its case in chief. The defendant took the stand and testified that someone else committed the crimes, at which point, the state was allowed to introduce the defendant’s statements for impeachment. Interestingly, the defendant was actually acquitted of the murder, but was convicted of other charges. Showing what some might see as a certain chutzpah, he appealed the lesser convictions, arguing that the state should not have been able to impeach him with his statements to the informant.

The Kansas Supreme Court agreed, but the United States Supreme Court reversed. The majority concluded that barring the use of such statements for impeachment would not add much deterrent value to the sanction of excluding such statements from the prosecution’s case in chief, and any incremental increase in deterrence was outweighed by the “need to prevent perjury and to assure the integrity of the trial process.”

The Court had previously ruled that statements obtained in violation of Miranda may be used for impeachment. Harris v. New York, 401 U.S. 222 (1971). And the Court foreshadowed the Ventris holding in Michigan v. Harvey, 494 U.S. 344 (1990), which itself allowed a statement obtained in violation of the Sixth Amendment to be used for impeachment — though in that case, Miranda warnings were given after the police wrongly initiated interrogation and the defendant explicitly waived counsel. In light of Harris and Harvey, the Ventris decision is not surprising, but it settles an open question, one that had become more important in light of the Court’s recent expansion of Sixth Amendment rights in Rothgery v. Gillespie County, 554 U.S. __ (2008) (holding that a defendant’s Sixth Amendment rights attach at his initial appearance before a magistrate rather than at his first appearance before a judge). With the Sixth Amendment right to counsel attaching earlier under Rothgery, there will likely be more situations in which violations of that right are alleged, and thus more situations in which courts will need to consider the use of statements obtained in violation of that right. Ventris, in that respect, is timely.